In two related decisions last week, the Supreme Judicial Court issued three important rulings, and handed the Brockton Power Company one major problem in its long-running effort to build a combined-cycle gas plant in Brockton.

First, in City of Brockton v. EFSB, the SJC rejected all of the challenges by the City of Brockton and certain citizens to the Energy Facilities Siting Board approval of the Brockton Power project.

In a holding that will cheer environmental advocates but strike fear into developers of all stripes, the SJC found that the EFSB’s application of the Commonwealth’s Environmental Justice policy is subject to judicial review, even though the policy itself states that does not create “any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity.” The Court concluded that this language was irrelevant. What matters is that the EFSB authorizing statute requires the EFSB to determine whether plans for a facility “are consistent with current health and environmental protection policies of the commonwealth.” Since the EJ policy is such a policy, the EFSB has a statutory obligation to determine compliance.

On the merits, the SJC found that the EFSB had performed the required review, but this certainly provides another arrow in the quiver of citizen groups.

Second, in an easy – but still critically important – holding, the SJC rejected citizen group claims that the EFSB should have held Brockton Power to a more stringent standard for air emissions than simply demonstrating that the project emissions would not cause an exceedance of National Ambient Air Quality Standards. The plaintiffs’ claim here was similar to that raised in Bell v. Cheswick Generating Station and North Carolina v. TVA, two federal cases in which plaintiffs have sought to demonstrate that even concentrations of air pollutants below the NAAQS remain sufficient to cause an actionable nuisance. Those claims were rejected in North Carolina v. TVA, but allowed to proceed in Bell.

I’m not going to mince words on this one. It’s a nutty idea that deserves a prompt and permanent place on the ash heap of history.

Finally, in Brockton Power v. EFSB, the SJC affirmed the EFSB’s rejection of Brockton Power’s request to use municipal water, rather than water from the Brockton advanced wastewater reclaimation facility, for cooling water. Brockton Power’s position was that the use of the public water supply was consistent with the Water Management Act, which the Department of Environmental Protection implements, and that the EFSB decision to the contrary “intruded on the authority” of MassDEP.” Similar to the EJ issue, the Court looked to the EFSB authorizing statute, and concluded it had not just the authority, but the obligation to review the water supply issues. It then rehearsed the “great deference” standard, and concluded that it was not in a position to overrule the conclusions reached by the EFSB.

Of course, the City of Brockton – the water supplier – opposes the project. One might reasonably wonder whether the City would have raised any of these issues if a different project, viewed more favorably by the City, needed the same amount of water.

One might just wonder, but wondering is not enough to overcome “great deference.”

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Kevin Conroy is a partner in Foley Hoag’s Administrative Law Department, with a primary focus on regulatory and government investigations. He co-chairs the firm’s Energy and Cleantech and State Attorney General groups...More

As Chair of Foley Hoag's Taxation Group, Nicola Lemay advises clients in all stages of their business development. She represents clients in the tax aspects of structuring and financing renewable energy projects... More